817 F.3d 12 (1st Cir. 2016), 15-1724, Doe v. Backpage.Com, LLC

Docket Nº:15-1724
Citation:817 F.3d 12, 118 U.S.P.Q.2d 1672
Opinion Judge:SELYA, Circuit Judge.
Party Name:JANE DOE NO. 1 ET AL., Plaintiffs, Appellants, v. BACKPAGE.COM, LLC ET AL., Defendants, Appellees
Attorney:John T. Montgomery, with whom Ching-Lee Fukuda, Aaron M. Katz, Christine Ezzell Singer, Jessica L. Soto, Rebecca C. Ellis, and Ropes & Gray LLP were on brief, for appellants. Maura Healey, Attorney General of Massachusetts, and Genevieve C. Nadeau, Deputy Chief, Civil Rights Division, on brief fo...
Judge Panel:Before Barron, Circuit Judge, Souter,[*] Associate Justice, and Selya, Circuit Judge.
Case Date:March 14, 2016
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
SUMMARY

Plaintiffs - all minors at the relevant times - were all trafficked through advertisements posted on Backpage.com. Plaintiffs filed suit against Backpage, alleging that Backpage tailored its website to facilitate sex traffickers’ efforts to advertise their victims on the website, leading to Appellants’ victimization. Specifically, Plaintiffs alleged that Backpage engaged in sex trafficking of... (see full summary)

 
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817 F.3d 12 (1st Cir. 2016)

118 U.S.P.Q.2d 1672

JANE DOE NO. 1 ET AL., Plaintiffs, Appellants,

v.

BACKPAGE.COM, LLC ET AL., Defendants, Appellees

No. 15-1724

United States Court of Appeals, First Circuit

March 14, 2016

Petition for certiorari filed at, 08/31/2016

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[Copyrighted Material Omitted]

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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Richard G. Stearns, U.S. District Judge.

John T. Montgomery, with whom Ching-Lee Fukuda, Aaron M. Katz, Christine Ezzell Singer, Jessica L. Soto, Rebecca C. Ellis, and Ropes & Gray LLP were on brief, for appellants.

Maura Healey, Attorney General of Massachusetts, and Genevieve C. Nadeau, Deputy Chief, Civil Rights Division, on brief for Commonwealth of Massachusetts, amicus curiae.

Dennis J. Herrera, City Attorney, Victoria Wong, Mollie Lee, Elizabeth Pederson, and Mark D. Lipton, Deputy City Attorneys, on brief for City and County of San Francisco, amici curiae.

Cathy Hampton, City Attorney, on brief for City of Atlanta, amicus curiae.

Michael N. Feuer, City Attorney, James P. Clark, Mary Clare Molidor, Anh Truong, Sahar Nayeri, and Office of the Los Angeles City Attorney, on brief for City of Los Angeles, California, amicus curiae.

Tracy Reeve, City Attorney, and Harry Auerbach, Chief Deputy City Attorney, on brief for City of Portland (Oregon), amicus curiae.

Donna L. Edmundson, City Attorney, on brief for City of Houston, amicus curiae.

Shelley R. Smith, City Solicitor, on brief for Michael A. Nutter, Mayor of Philadelphia, amicus curiae.

Jeffrey Dana, City Solicitor, on brief for City of Providence and Mayor Jorge O. Elorza, amicus curiae.

Stacey J. Rappaport and Milbank, Tweed, Hadley & McCloy LLP on brief for Covenant House, Demand Abolition, ECPAT-USA, Human Rights Project for Girls, My Life, My Choice of Justice Resource Institute, National Crime Victim Law Institute, Sanctuary for Families, and Shared Hope International, amici curiae.

Jenna A. Hudson, Kami E. Quinn, Gilbert LLP, and Andrea Powell, Executive Director, on brief for FAIR Girls, amicus curiae.

Michael Rogoff, Robert Barnes, Oscar Ramallo, and Kaye Scholer LLP, on brief for National Center for Missing and Exploited Children, amicus curiae.

Jeffrey J. Pyle, with whom Robert A. Bertsche, Prince Lobel Tye LLP, James C. Grant, Ambika K. Doran, and Davis Wright Tremaine LLP were on brief, for appellees.

Before Barron, Circuit Judge, Souter,[*] Associate Justice, and Selya, Circuit Judge.

OPINION

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[118 U.S.P.Q.2d 1674] SELYA, Circuit Judge.

This is a hard case -- hard not in the sense that the legal issues defy resolution, but hard in the sense that the law requires that we, like the court below, deny relief to plaintiffs whose circumstances evoke outrage. The result we must reach is rooted in positive law. Congress addressed the right to publish the speech of others in the Information Age when it enacted the Communications Decency Act of 1996 (CDA). See 47 U.S.C. § 230. Congress later addressed the need to guard against the evils of sex trafficking when it enacted the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), codified as relevant here at 18 U.S.C. § § 1591, 1595. These laudable legislative efforts do not fit together seamlessly, and this case reflects the tension between them. Striking the balance in a way that we believe is consistent with both congressional intent and the teachings of precedent, we affirm the district court's order of dismissal. The tale follows.

I. BACKGROUND

In reviewing the grant or denial of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),

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we draw upon the well-pleaded facts as they appear in the operative pleading (here, the second amended complaint). See SEC v. Tambone, 597 F.3d 436, 438 (1st Cir. 2010) (en banc).

Backpage.com provides online classified advertising, allowing users to post advertisements in a range of categories based on the product or service being sold.1 Among the categories provided is one for " Adult Entertainment," which includes a subcategory labeled " Escorts." The site is differentiated by geographic area, enabling users to target their advertisements and permitting potential customers to see local postings.

This suit involves advertisements posted in the " Escorts" section for three young women -- all minors at the relevant times -- who claim to have been victims of sex trafficking. Suing pseudonymously, the women allege that Backpage, with an eye to maximizing its profits, engaged in a course of conduct designed to facilitate sex traffickers' efforts to advertise their victims on the website. This strategy, the appellants say, led to their victimization.

Past is prologue. In 2010, a competing website (Craigslist) shuttered its adult advertising section due to concerns about sex trafficking. Spying an opportunity, Backpage expanded its marketing footprint in the adult advertising arena. According to the appellants, the expansion had two aspects. First, Backpage engaged in a campaign to distract attention from its role in sex trafficking by, for example, meeting on various occasions with hierarchs of the National Center for Missing and Exploited Children (NCMEC) and making " false and misleading representations" to the NCMEC and law enforcement regarding its efforts to combat sex trafficking. But this campaign, the appellants suggest, was merely a ruse.

The second aspect of Backpage's expansion strategy involved the deliberate structuring of its website to facilitate sex trafficking. The appellants aver that Backpage selectively removed certain postings made in the " Escorts" section (such as postings made by victim support organizations and law enforcement " sting" advertisements) and tailored its posting requirements to make sex trafficking easier.2

In addition, the appellants allege that Backpage's rules and processes governing the content of advertisements are designed to encourage sex trafficking. For example, Backpage does not require phone number verification and permits the posting of phone numbers in alternative formats. There is likewise no e-mail verification, and Backpage provides users with the option to " hide" their e-mail addresses in postings, because Backpage provides [118 U.S.P.Q.2d 1675] message forwarding services and auto-replies on behalf of the advertiser. Photographs uploaded for use in advertisements are shorn of their metadata, thus removing from scrutiny information such as the date,

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time, and location the photograph was taken. While Backpage's automated filtering system screens out advertisements containing certain prohibited terms, such as " barely legal" and " high school," a failed attempt to enter one of these terms does not prevent the poster from substituting workarounds, such as " brly legal" or " high schl."

The appellants suggest that Backpage profits from having its thumb on the scale in two ways. First, advertisements in the " Adult Entertainment" section are the only ones for which Backpage charges a posting fee. Second, users may pay an additional fee for " Sponsored Ads," which appear on the right-hand side of every page of the " Escorts" section. A " Sponsored Ad" includes a smaller version of the image from the posted advertisement and information about the location and availability of the advertised individual.

Beginning at age 15, each of the appellants was trafficked through advertisements posted on Backpage. Jane Doe #1 was advertised on Backpage during two periods in 2012 and 2013. She estimates that, as a result, she was raped over 1,000 times. Jane Doe #2 was advertised on Backpage between 2010 and 2012. She estimates that, as a result, she was raped over 900 times. Jane Doe #3 was advertised on Backpage from December of 2013 until some unspecified future date. As a result, she was raped on numerous occasions.3 All of the rapes occurred either in Massachusetts or Rhode Island. Sometimes the sex traffickers posted the advertisements directly and sometimes they forced the victims to post the advertisements.

Typically, each posted advertisement included images of the particular appellant, usually taken by the traffickers (but advertisements for Doe #3 included some pictures that she herself had taken). Many of the advertisements embodied challenged practices such as anonymous payment for postings, coded terminology meant to refer to underage girls, and altered telephone numbers.

The appellants filed suit against Backpage in October of 2014. The operative pleading is the appellants' second amended complaint, which limns three sets of claims. The first set consists of claims that Backpage engaged in sex trafficking of minors as defined by...

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